UCLA Law Professor Adam Winkler has a smart take on the implications of the Republican filibuster of Goodwin Liu's nomination to the federal bench:
Even if a law professor scores a nomination, today's highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn't unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don't reflect her personal views but were required by precedent. Law professors don't have that easy out – as Liu's case shows. Republicans have refused to allow Liu to win confirmation because of his writings in favor of affirmative action and against torture.
So if you're a liberal who wants to be a Supreme Court justice, you keep your head down, write very little, offer legal advice you can later disavow as mere counsel to a client, get nominated to a judgeship, grit your teeth through a confirmation hearing assuring everyone you have no controversial or original views on anything and that your previous rulings were all based on the law, and then let loose once you get on the bench. In other words, you do exactly what the conservative movement has been doing for years.
Jonathan Zasloff meanwhile, proposes two options--a recess appointment or a nomination to the Supreme Court in California.
